ISLAMABAD: A six-judge Supreme Court bench will take up on Dec 13 a set of intra-court appeals (ICAs) against its Oct 23 unanimous verdict declaring the trial of 103 civilians in military courts for their alleged involvement in the May 9 violence as against the Constitution.

The bench will be headed by Justice Sardar Tariq Masood and comprise Justice Aminuddin Khan, Justice Mohammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Irfan Saadat Khan.

The ICAs were moved by the federal government, the defence ministry, Punjab, Khyber Pakhtunkhwa and Balochistan governments requesting the suspension of the operation of Oct 23 short order during the ICAs pendency.

On Oct 23, a five-judge SC bench headed by Justice Ijazul Ahsan had declared that the cases of the accused involved in the May 9 riots would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.

Apex court releases minutes of three-judge committee’s meetings

The detailed reason of the judgement is yet to come.

However, the constitution of the bench has also raised eyebrows, with senior counsel Faisal Siddiqui saying it’s contrary to the earlier court practice of making benches in odd number rather than in a perfect balance.

He told Dawn that he would definitely raise the issue when the ICAs will be taken up on Dec 13, wondering what will be the ratio of the court decision if it was divided in equal numbers — three judges in favour and three against it.

How Justice Sardar Tariq Masood could head the bench, Advocate Siddiqui wondered, when he had already expressed his opinion in a note he issued on July 4 during the first round of litigation.

Justice Tariq was initially part of the earlier nine-judge SC bench which heard the challenges to the military courts, but later decided not to sit on the bench rather expressed his opinion regarding the non-maintainability of the petitions.

Justice Masood had opted out of the nine-judge bench with then senior puisne judge Justice Qazi Faez Isa, saying he did not consider the present bench a properly constituted court.

In the note, Justice Masood had regretted that the petitions challenging the military court trials were filed by those who apparently were not detained, nor facing trial with regard to the offences, allegedly committed on May 9 in the cantonment areas.

Minutes of SC body meetings

The Supreme Court on Saturday released the minutes of the fourth and fifth meetings of the committee of three senior-most judges. The minutes of the fourth meeting suggested that a larger bench will be constituted by Chief Justice of Pakistan (CJP) Qazi Faez Isa and Justice Sardar Tariq Masood to hear the intra-court appeals regarding trial of civilians under the PAA 1952.

The committee of senior judges — CJP Isa, Justice Masood and Justice Ijaz-ul-Ahsan — was constituted under the Supreme Court (Practice and Procedure) Act 2023, which a full court consisting of all judges had upheld in a split decision.

The fourth meeting of the committee, held on Nov 30, also decided that the office of the registrar will determine the maintainability of appeals/petitions first. And only those cases, determined by the registrar to be non-maintainable and as a consequence of which appeals were filed, will be fixed to be heard by the concerned judge in his chamber, as per the directions of CJP.

The fifth meeting of the committee, held on Dec 7, decided that the draft procedure rules for the committee will be shared with all the members for discussion on Jan 4 — the next date of hearing. It decided that regular civil and criminal benches constituted earlier will continue hearing the pending civil and criminal cases on the basis of first in first out.

Published in Dawn, December 10th, 2023